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THE LIBERAL CONSTITUTION AND FOREIGN AFFAIRS

Published online by Cambridge University Press:  30 November 2010

Fernando R. Tesón
Affiliation:
Law, Florida State University

Abstract

Scholars have debated the meaning of the foreign-relations clauses in the U.S. Constitution. This essay attempts to outline the foreign-relations clauses that an ideal constitution should have. A liberal constitution must enable the government to implement a morally defensible foreign policy. The first priority is the defense of liberty. The constitution must allow the government to effectively defend persons, territory, and liberal institutions themselves. The liberal government should also contribute to the advancement of global freedom, subject to a number of conditions, especially cost. The essay recommends improved methods to incorporate treaties and customary international law into the constitutional structure. Treaties should be approved by the whole legislature and should generally be self-executing. Customary law should be genuine, not fake, and consistent with liberal principles. Finally, based on economic theory and evidence, the essay recommends that liberal constitutions prohibit the government from erecting trade barriers. It concludes by tentatively proposing concrete constitutional language to implement these recommendations.

Type
Research Article
Copyright
Copyright © Social Philosophy and Policy Foundation 2011

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References

1 For a survey of the voluminous literature, see Bradley, Curtis and Goldsmith, Jack, Foreign Relations Law: Cases and Materials, 3rd ed. (New York: Aspen Publishers, 2009)Google Scholar.

2 Internationalists include almost all of the practitioners in the field until recently. See esp. Henkin, Louis, Foreign Affairs and the Constitution (Oxford: Oxford University Press, 1996)CrossRefGoogle Scholar; Koh, Harold, The National Security Constitution: Sharing Power after the Iran-Contra Affair (New Haven, CT: Yale University Press, 1990)Google Scholar; and Spiro, Peter J., “The New Sovereigntists: American Exceptionalism and Its False Prophets,” Foreign Affairs 79, no. 6 (2000): 9CrossRefGoogle Scholar. The exceptionalist position can be found in the following works: Bradley, Curtis A. and Goldsmith, Jack, “Customary International Law as Federal Common Law: A Critique of the Modern Position,” Harvard Law Review 110 (1997): 815CrossRefGoogle Scholar; Bradley, Curtis, “A New American Foreign Affairs Law?University of Colorado Law Review 70 (1999): 1089Google Scholar; Prakash, Saikrishna B. and Ramsey, Michael D., “The President's Power over Foreign Affairs,” Yale Law Journal 111 (2001): 231CrossRefGoogle Scholar; and Yoo, John C., “Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding,” Columbia Law Review 99 (1999): 1955CrossRefGoogle Scholar. Needless to say, there are differences within each group.

3 See, e.g., Neuman, Gerald D., “The Uses of International Law in Constitutional Interpretation,” American Journal of International Law 98 (2004): 82CrossRefGoogle Scholar.

4 See, e.g., Van Alstine, Michael, “Executive Aggrandizement in Foreign Affairs Lawmaking,” UCLA Law Review 54 (2006): 309Google Scholar.

5 See, e.g., Swaine, Edward T., “Negotiating Federalism: State Bargaining and the Dormant Treaty Power,” Duke Law Journal 49 (2000): 1127CrossRefGoogle Scholar.

6 See Alford, Roger P., “Misusing International Sources to Interpret the Constitution,” American Journal of International Law 98 (2004): 57CrossRefGoogle Scholar.

7 For a defense of executive power, see Ramsey, Michael D., The Constitution's Text in Foreign Affairs (Cambridge, MA: Harvard University Press, 2007), 49131Google Scholar. There are unexplained tensions within these views: For the exceptionalists, promoting a greater role for the states is at odds with strong presidential powers. Conversely, for the internationalists, opposing a greater role for the states seems at odds with their desire to curb an “imperial” presidency.

8 See, e.g., Goldsmith, Jack, “Statutory Foreign Affairs Preemption,” Supreme Court Review (2001): 175Google Scholar.

9 For a summary of these arguments, see Flaherty, Martin S., “Case Studies in Conservative and Progressive Legal Orders: The Future and Past of U.S. Foreign Relations Law,” Law and Contemporary Problems 67 (2004): 169Google Scholar.

10 See ibid.

11 See Rawls, John, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 5978Google Scholar.

12 See Tesón, Fernando R., A Philosophy of International Law (Boulder, CO: Westview Press, 1998), 105–22Google Scholar.

13 Locke writes: “[W]hat is to be done in reference to foreigners, depending much upon their actions, and the variations of designs and interests, must be left in great part to the prudence of those who have this power committed to them, to be managed by the best of their skill, for the advantage of the Commonwealth.” Locke, John, Two Treatises of Civil Government (1690), ed. Laslett, Peter (Cambridge: Cambridge University Press, 1960), Second Treatise, chapter 12, sec. 147Google Scholar.

14 See Petersmann, Ernst-Ulrich, “National Constitutions, Foreign Trade Policy, and European Community Law,” European Journal of International Law 3 (1992): 13CrossRefGoogle Scholar.

15 For the argument against relativism in international law, see Tesón, Fernando R., Humanitarian Intervention: An Inquiry into Law and Morality, 3d ed. (Ardsley, NY: Transnational Publishers, 2005), 3655Google Scholar. For a typical list of international human rights, see the International Covenant of Civil and Political Rights (1966). I am aware of the controversy surrounding just which human rights are basic or natural. I cannot pursue the matter here; suffice it to say that they include the traditional liberal rights of life, personal security, and property (the latter for reasons that will become apparent in the text). The point is that we are not entitled to “use and consume” foreigners at will (to use Kant's phrase) just because they are not members of our political community.

16 Kant's argument is set forth in Kant, Immanuel, To Perpetual Peace: A Philosophical Sketch (1795), trans. Ted Humphrey (Indianapolis, IN: Hackett, 1983)Google Scholar. Leading modern proponents include Doyle, Michael, “Kant, Liberal Legacies, and Foreign Affairs, Part 1,” Philosophy and Public Affairs 12 (1983): 205–35Google Scholar; Owen, John M., “How Liberalism Produces Democratic Peace,” International Security 19 (1994): 7125CrossRefGoogle Scholar; and Russett, Bruce, Grasping the Democratic Peace: Principles for a Post–Cold War World (Princeton, NJ: Princeton University Press, 1993)Google Scholar. For a rather optimistic endorsement of the theory, see Tesón, A Philosophy of International Law, 9–14.

17 See Kant, Perpetual Peace.

18 See Russett, Grasping the Democratic Peace, 30.

19 Among the critics, see Layne, Christopher, “Kant or Cant: The Myth of Democratic Peace,” International Security 19 (1994): 5CrossRefGoogle Scholar; Spiro, David, “The Insignificance of the Liberal Peace,” International Security 19 (1994): 50CrossRefGoogle Scholar; and Rosato, Sebastian, “The Flawed Logic of Democratic Peace Theory,” American Political Science Review 97 (2003): 585CrossRefGoogle Scholar.

20 Here I follow Lomasky, Loren, “Liberalism Beyond Borders,” Social Philosophy and Policy 24, no. 1 (2007): 206–33CrossRefGoogle Scholar.

21 I treat the concept of “security interests” as coextensive with “defense-of-liberty interests.”

22 Two notorious examples are America's cooperation with the USSR during World War II and America's (less egregious) cooperation with Pakistan at present.

23 The argument for an obligation not to cooperate with tyranny only shows that it is wrong to form alliances with tyrants, but does not show that there is a positive obligation to have any allies. It does not refute isolationism. The arguments for the liberal alliance, in contrast, do challenge isolationism.

24 In particular, the debate in the global justice literature centers on whether people in rich countries owe duties of distributive justice to people in poor countries. I do not address the question here because I do not think it is relevant to constitutional design. For contrasting views, see Nagel, Thomas, “The Problems of Global Justice,” Philosophy and Public Affairs 33 (2005): 113CrossRefGoogle Scholar; Cohen, Joshua and Stable, Charles, “Extra Republicam Nulla Iustitia?Philosophy and Public Affairs 34 (2006): 147CrossRefGoogle Scholar; and Julius, A. J., “Nagel's Atlas,” Philosophy and Public Affairs 34 (2006): 176CrossRefGoogle Scholar.

25 See Buchanan, Allen, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004), 73111Google Scholar.

26 I am aware that the universality of property rights is controversial these days. I specify below why liberal constitutions must protect such rights.

27 Perhaps in Edmund Burke's sense: “Society is indeed a contract…. It is a partnership in all science; a partnership in all art; a partnership in every virtue, and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.” Burke, Edmund, Reflections on the Revolution in France, in Select Works of Edmund Burke (Indianapolis, IN: Liberty Fund, 1999), 2, para. 307; available online at http://oll.libertyfund.org/title/656/20374/1373287Google Scholar.

28 I say “quasi-absolute” to leave open the possibility that there may be actions that the government is morally prohibited from taking against foreigners under any circumstances.

29 Even here, the liberal state may not commit war crimes in repelling the aggressor.

30 The exception to this is military humanitarian intervention, which I think is warranted in some cases. See Tesón, Humanitarian Intervention.

31 The Cuban embargo may be an example of this.

32 See Tesón, Fernando R., “Liberal Security,” in Wilson, Richard, ed., Human Rights in the ‘War on Terror’ (Cambridge: Cambridge University Press, 2005), 5777CrossRefGoogle Scholar.

33 Thus, if I had to guess, I would say that the procedures established after 9/11 to deal with detainees have not met the test. It does not seem to me that the gains in liberty obtained by these procedures have justified the loss of global prestige and standing by the United States (factors which also enhance liberty in the long run). But this is a guess: I lack the information to assert this confidently.

34 As provided in the pertinent international instruments. See, e.g., U.N. Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment (1975), http://www.hrweb.org/legal/cat.htmlGoogle Scholar.

35 See the discussions in Dershowitz, Alan, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven, CT: Yale University Press, 2002), 142–62, 250–54Google Scholar; and Waldron, Jeremy, “Torture and Positive Law: Jurisprudence for the White House,” Columbia Law Review 105 (2005): 1681Google Scholar.

36 The economic literature on the importance of market-friendly institutions for economic development is extensive. See, e.g., North, Douglass C., Institutions, Institutional Change, and Economic Performance (Cambridge: Cambridge University Press, 1990)CrossRefGoogle Scholar; De Soto, Hernando, The Other Path: The Invisible Revolution in the Third World (New York: Harper and Row, 1989), esp. chap. 5Google Scholar; and Acemoglu, Daron, Johnson, Simon, and Robinson, James, “The Colonial Origins of Comparative Development: An Empirical Investigation,” American Economic Review 91 (2001): 13691401CrossRefGoogle Scholar.

37 See Grossman, Gene and Helpman, Elhanan, “Protection for Sale,” American Economic Review 84, no. 4 (1994): 833–50Google Scholar.

38 Mercantilism views trade as a zero-sum game: one country's gains come at the expense of other countries. This view rests on the false assumption that a surplus in international trade must be a deficit for other countries. In fact, national well-being is based on present and future increased consumption. The importance of exports is only indirect: they provide the income to buy products to consume. As Thomas Pugel and Peter Lindert write: “[I]mports are part of the expanding national consumption that a nation seeks, not an evil to be suppressed.” Pugel, Thomas and Lindert, Peter, International Economics, 11th ed. (New York: Irwin-McGraw-Hill, 1999), 33Google Scholar.

39 The view that the U.S. Constitution should be neutral toward economic policy was stated by Justice Oliver Wendell Holmes in his famous dissent in the Lochner case, and endorsed ever since by courts and most commentators. See Lochner v. New York, 198 U.S. 45 (1905)Google Scholar. I discuss Lochner more fully below; see notes 40 and 86.

40 On the Lochner debate, see, e.g., Symposium: Lochner Centennial Conference, Boston University Law Review 85 (2005): 667Google Scholar. For a vindication of Lochner, see Bernstein, David, Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Durham, NC: Duke University Press, 2001)Google Scholar.

41 See Epstein, Richard, How Progressives Rewrote the Constitution (Washington, DC: Cato Institute, 2007)Google Scholar; and Barnett, Randy, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, NJ: Princeton University Press, 2005)Google Scholar.

42 See the works cited in note 36. I believe property rights are supported by moral considerations as well. For a Kantian argument to that effect, see Byrd, B. Sharon and Hruschka, Joachim, “The Natural Law Duty to Recognize Private Property Ownership: Kant's Theory of Property in His Doctrine of Right,University of Toronto Law Journal 56 (2006): 217CrossRefGoogle Scholar.

43 For a full development of the argument that free trade helps the poor, and a rejection of putative moral arguments opposing free trade, see Fernando R. Tesón and Jonathan Klick, “Global Justice and Trade,” in Distributive Justice and International Economic Law, ed. C. Carmody, F. Garcia, and J. Linarelli (Cambridge: Cambridge University Press, forthcoming).

44 The relevant provisions of the U.S. Constitution are Article I, section 8: “The Congress shall have the power … to declare war”; and Article II, section 2: “The President shall be Commander in Chief of the Army and Navy of the United States….” Not every constitution establishes congressional-presidential war powers. In other liberal constitutions, the president both declares and conducts war. Examples of nations with exclusive executive war powers are the United Kingdom, Sweden, and Belgium. See EurActiv, “On A European War Powers Act,” http://www.euractiv.com/en/security/european-war-powers-act/article. See also article 15 of the French Constitution.

45 In U.S. constitutional law, the role of Congress has evolved from the power to declare war into the power to authorize war. See generally Ely, John Hart, War and Responsibility: Constitutional Lessons from Vietnam and Its Aftermath (Princeton, NJ: Princeton University Press, 1993), 310Google Scholar; and Bradley, Curtis and Goldsmith, Jack, “Congressional Authorization and the War on Terrorism,” Harvard Law Review 118 (2005): 2047Google Scholar.

46 See the Prize cases, 67 U.S. 635 (1863)Google Scholar.

47 de Montesquieu, Baron, The Spirit of the Laws (1748) (Amherst, NY: Prometheus, 2002), 151–52Google Scholar.

48 The importance of having concurrent war powers may be shown by the case of Imperial Germany's entry into World War I. Even though the Reichstag had broad domestic legislative powers, the Emperor was in complete control of foreign policy decisions, including the decision to go to war. See Doyle, “Kant, Liberal Legacies, and Foreign Affairs,” 216–17, note 8.

49 See Kant, Perpetual Peace, and the discussion in Tesón, A Philosophy of International Law, 1–26.

50 I have left out an important question here: Can the liberal constitution allow military conscription? Mainstream political theorists think so. See Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 380Google Scholar. Many modern states, but not all, allow conscription. See the breakdown by states at http://www.nationmaster.com/graph/mil_con-military-conscription. I am skeptical, however. The defense of the liberal state should be entrusted to those who have comparative advantages in the military profession and who voluntarily enroll in the armed forces. A possible solution is to allow the military draft only for wars of self-defense, but not for other (justified) foreign wars, such as humanitarian interventions, on the grounds that national defense is a public good notoriously vulnerable to market failure. For other justified wars, the government may only use a voluntary army. I tentatively suggest this approach in Tesón, Fernando R., “The Liberal Case for Humanitarian Intervention,” in Holzgrefe, J. L. and Keohane, Robert O., eds., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press, 2003), 93CrossRefGoogle Scholar.

51 U.S. Constitution, Article II.

52 See the recent decision in Medellin v. Texas, 128 S. Ct. 1346 (2008)Google Scholar (holding, inter alia, that the president cannot unilaterally implement a non-self-executing treaty).

53 A prime example is the International Covenant on Civil and Political Rights (ICCPR).

54 Examples are the ICCPR and the 1948 Genocide Convention.

55 In comparative law, the practice is not uniform. Some states assimilate treaties automatically; others, such as the United Kingdom and the Nordic states, always require an incorporating statute; yet others fall in-between. For Europe, see Council of Europe, Treaty Making: Expression of Consent by States to Be Bound by a Treaty (The Hague: Kluwer, 2001), 8896Google Scholar.

56 The curious reader may compare the views of Yoo, John C., “Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding,” Columbia Law Review 99 (1999): 1955CrossRefGoogle Scholar, with those of Vazquez, Carlos M., “Laughing at Treaties,” Columbia Law Review 99 (1999): 2154CrossRefGoogle Scholar.

57 Again, let us keep in mind that I am considering an ideal constitution. There may be doctrinal and historical reasons to take a different view in the context of U.S. law.

58 When the legislature incorporates a treaty into domestic law, the treaty morphs into a new rule belonging to a new legal system, even if its content remains unchanged. The reason is that a treaty in international law is not subservient to any national constitution, while in domestic law it is subservient to the national constitution. The “dualist” theory is thus correct: international law and national law are two different legal systems, even if some of their respective rules are identical. But I cannot pursue this matter here.

59 An example may be article 20 of the International Covenant on Civil and Political Rights, which seems to obligate states to prohibit “hate” speech. When the United States ratified this treaty in 1992, it made an express reservation to this article on the grounds that it was inconsistent with the U.S. Constitution. The reservation reads: “That article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.” The list of U.S. reservations, understandings, and declarations to the ICCPR can be found at the University of Minnesota Human Rights Library, http://www1.umn.edu/humanrts/usdocs/civilres.htm.

60 See Goldsmith, Jack and Posner, Eric, The Limits of International Law (Oxford: Oxford University Press, 2005), 2378Google Scholar.

61 See Hart, H. L. A., The Concept of Law (Oxford: Oxford University Press, 1960), 91Google Scholar.

62 See the seminal treatment by D'Amato, Anthony A., The Concept of Custom in International Law (Ithaca, NY: Cornell University Press, 1971), 73102Google Scholar. My own account of customary law draws on game theory. See Tesón, A Philosophy of International Law, chap. 3.

63 The widely cited Article 38 of the Statute of the International Court of Justice lists as sources of international law (alongside treaty, custom, and general principles of law) “judicial decisions and the teachings of the most highly qualified publicists [i.e., international law experts] of the various nations, as subsidiary means for the determination of rules of law” (emphasis added). Thus, this article accepts judicial decisions and the writings of international law experts only as ways to determine or specify rules generated by “hard” sources, and not as independent, autonomous sources of law. Article 38, therefore, does not support the modern definition of custom. Of course, this is not dispositive.

64 See, e.g., Henkin, Louis, “International Law as Law in the United States,” Michigan Law Review 82 (1984): 1555CrossRefGoogle Scholar.

65 The leading critics of the internationalist position with respect to custom are Bradley and Goldsmith, “Customary International Law as Federal Common Law”; and McGinnis, John O. and Somin, Ilya, “Should International Law Be Part of Our Law?Stanford Law Review 59 (2007): 1175Google Scholar.

66 McGinnis and Somin, “Should International Law Be Part of Our Law?” All further references to their views are to this article.

67 Torture Victim Protection Act, Pub. L. No. 102-256 para. 2, 106 Stat. 73 (March 12, 1992)Google Scholar.

68 Examples, in addition to the hate speech provision mentioned above, may be the anti-market bias of many of the rules on “economic rights” and those pertaining to natural resources—if they are customary rules at all.

69 Bradley and Goldsmith draw the distinction in Foreign Relations Law, 578. See also Kelly, J. Patrick, “The Twilight of Customary International Law,” Virginia Journal of International Law 40 (2000): 449Google Scholar.

70 See Tesón, A Philosophy of International Law, 85–89.

71 Examples are the rules of diplomatic immunity, state responsibility, treaties, and jurisdiction.

72 For example, virtually everyone agrees that customary international law prohibits state torture and indefinite detention. Yet those rules are not supported by state practice. My own view is that the assertions that these rules are “custom” are moral assertions which, depending on one's jurisprudential preferences, may be considered as part of the law. In the text, less ambitiously, I say that such rules have been agreed upon by strong consensus.

73 Academics are demonstrably biased to the left. See Pincione, Guido and Tesón, Fernando R., Rational Choice and Democratic Deliberation: A Theory of Discourse Failure (Cambridge: Cambridge University Press, 2006), 5364CrossRefGoogle Scholar. For empirical evidence, see McGinnis, John O. et al. , “The Patterns and Implications of Political Contributions by Elite Law School Faculty,” Georgetown Law Journal 93 (2005): 1167Google Scholar.

74 To the examples discussed above, I would add the modern customary prohibition against the execution of juveniles for capital crimes. Such executions were recently declared unconstitutional (in part based on international consensus) by the U.S. Supreme Court. See Roper v. Simmons, 543 U.S. 551 (2005)Google Scholar.

75 The International Court of Justice (ICJ) frequently mentions “general practice” without bothering to point to any instances of state practice—much less analyze it. McGinnis and Somin mention the Nicaragua case (decided June 27, 1986) as an example. See McGinnis and Somin, “Should International Law Be Part of Our Law?” 1201. In that case, the ICJ asserted that collective self-defense (that is, the defense by a state of another state) is available only against a full-fledged armed attack, and not against minor uses of force. For this the ICJ cited no precedent whatsoever. I would also mention two more cases. In the Case Concerning Armed Activities in the Territory of the Congo (2005), the ICJ reiterated the groundless Nicaragua findings about use of force and invented some customary law of its own, such as the principle of “permanent sovereignty over natural resources,” citing only a nonbinding (and much challenged) U.N. General Assembly Resolution. See Case Concerning Armed Activities in the Territory of the Congo (Judgment of December 19, 2005), http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=51&case=116&code=co&p3=4, paragraph 244. In the Arrest Warrant Case (decided February 14, 2002), the ICJ concluded that customary international law afforded foreign ministers absolute immunity from criminal jurisdiction. However, one searches in vain for any citation of any international incident or precedent supporting that claim. See Arrest Warrant Case, http://www.icj-cij.org/docket/files/121/8126.pdf, paragraphs 52–54. My point here is not that the rules the ICJ applied are not law: they may or may not be. My point is rather one of method: the rules in question are not supported by the arguments the ICJ gives.

76 I say “community” for convenience; nothing follows from this term.

77 See The Paquete Habana, 175 U.S. 677 (1900)Google Scholar. In that case, the U.S. Supreme Court applied a rule of customary law that exempted fishermen from capture in times of war. Writing for the Court, Justice Gray wrote: “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations. . .” (id., 328–29; emphasis added).

78 As U.S. courts normally do. See the discussion of the Sosa case below.

79 This is a hypothetical example: this customary rule has been codified in the 1961 Vienna Convention on Diplomatic Relations. The United States has ratified this convention and implemented it domestically through the 1978 Diplomatic Relations Act, 22 U.S.C. The customary rule governs diplomatic immunity among those countries who are not parties to the Vienna Convention.

80 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)Google Scholar.

81 McGinnis and Somin also suggest that the world might be better off if the United States exported its own superior law, rather than adopting the inferior customary international law. There is nothing wrong with exporting beneficial laws. But this does not mean that domestic courts should disregard good customary rules, that is, those meeting the quality conditions I have specified.

82 For example, in the unlikely event that someone invokes a rule of customary law to invalidate a state law of fundamental importance, such as a law pertaining to the criminal process, or basic common law rules such as property or tort, then state law should prevail. The mainstream position in the United States on preemption is, in my judgment, too formalistic: if customary international law is federal law, then it preempts state law, period. I think a balancing test would be in order here. If the customary international rule offends liberty in some important sense, then it should not preempt state law.

83 The members of the European Union have delegated the regulation of foreign commerce to the Union. See the discussion in the text. Other examples include the Brazilian Constitution, Article 22, section 8; the Australian Constitution, Article 51, section i; and the Mexican Constitution, Article 131.

84 Hamilton, Alexander, Federalist No. 11, in The Federalist Papers, ed. Rossiter, Clinton (New York: New American Library, 1961)CrossRefGoogle Scholar.

85 Buttfield v. Stranahan, 192 U.S. 470 (1904)Google Scholar.

86 The “Lochner era” refers to a period in American history when the Supreme Court invalidated Progressive legislation on the grounds that it interfered with freedom of contract. Subsequently, the Supreme Court overruled Lochner v. New York, 198 U.S. 45 (1905)Google Scholar (the emblematic case of that era), thus allowing broad governmental regulation of economic activity. This began the post-Lochner era, which endures to this day. Paradoxically, the Buttfield case (cited in note 85) was decided at around the same time as Lochner, yet it is still good law today. This suggests, perhaps, that foreign trade has always been the stepsister of economic liberties: even the Lochner Court would not extend its defense of property rights and freedom of contract to foreign trade.

87 Lochner v. New York, 198 U.S. 45 (1905)Google Scholar (Holmes, dissenting).

88 Jon Klick and I discuss the place of trade in a theory of justice in Fernando R. Tesón and Jonathan Klick, “Global Justice and Trade,” in Carmody, Garcia, and Linarelli, eds., Distributive Justice and International Economic Law.

89 The actual structure of the U.S. Constitution is quite complicated, and a full account is beyond the scope of this essay. Article I, Section 8, para. 3 (the commerce clause) reads: “The Congress shall have Power … to regulate Commerce with foreign Nations, and among the Several States, and with the Indian Tribes.” However, Article I, section 10, para. 2 expressly forbids states from unilaterally erecting trade barriers: “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports …” (emphasis added). It is clear from these provisions that Congress has a vast power to intervene in markets, foreign or domestic. The Constitution does not guarantee citizens that their products will flow freely within the United States, since Congress may authorize states to impose interstate trade barriers. Given this, it is fortunate that Congress has had the good sense not to exercise this power domestically. But the foreign commerce power is “plenary,” that is, unaffected by domestic concerns such as federalism or the Bill of Rights. And Congress (or the president using delegated power) routinely enacts restrictions on foreign trade.

90 See Case 240/83, Procureur de la Republique v. ADBHU, [1985] ECR 531, 548 (1983)Google Scholar.

91 The view that national constitutions and international law should recognize a right to trade was pioneered by German scholar and European Commissioner Ernst-Ulrich Petersmann. In a series of articles, he argued that national constitutions and international law should recognize economic liberties, and in particular the individual right to trade freely, alongside the traditional human rights. See Petersmann, “National Constitutions, Foreign Trade Policy, and European Community Law”; and Petersmann, Ernst-Ulrich, “Time for a United Nations Global Compact for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration,” European Journal of International Law 13 (2002): 621CrossRefGoogle Scholar. Petersmann's suggestion has angered some human rights scholars. See, e.g., Alston, Philip, “Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann,” European Journal of International Law 13 (2002): 815CrossRefGoogle Scholar. For Petersmann's reply, see Petersmann, Ernst-Ulrich, “Taking Human Rights, Poverty, and Empowerment of Individuals More Seriously: Rejoinder to Alston,” European Journal of International Law 13 (2002): 845CrossRefGoogle Scholar. For reasons that are unclear, Alston's wrath reaches my own work (Tesón, A Philosophy of International Law, which Petersmann approvingly cites), although in that book I do not discuss international trade in any detail. Alston endorses the critique of my book by Capps, Patrick, “The Kantian Project in Modern International Legal Theory,” European Journal of International Law 12 (2001): 1003CrossRefGoogle Scholar, without, it seems, having read either one, because Capps's critique has nothing to do with trade. (Rather, Capps thinks I have misread Kant.) Yet I would imagine that Alston should have been attracted to the views in my book, since there I suggest that human rights should be the basis of international law. On the merits, Alston's argument is weak. He thinks that Petersmann is wrong because international human rights have never included a right to trade freely. But of course, this begs the question, since the failure of international law to recognize a right to trade is precisely what Petersmann wants to change.

92 Perhaps Guido Pincione is right: just give government the minimal power possible and forget about the Bill of Rights and other attempts to restrict the powers of the state. See his essay in this volume.